Sheriff v Thawer (Civ. App. No. 14 of 1938.) [1938] EACA 91 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); SIR LLEWELYN DALTON, C. J. (Tanganyika); and WHITLEY, C. J. (Uganda).

## NASSERALI FAZAL MOHAMED SHERIFF, executor of the will of the late Fazal Mahomed Sheriff, deceased, Appellant

(Original Plaintiff)

$\nu$ .

## GULAM HUSSEIN HAJI THAWER trading as Haji Thawer & Co., Respondents (Original Defendants)

## Civ. App. No. 14 of 1938.

Appeal from decision of Fretz, J. (Zanzibar).

Jurisdiction of High Court—Arbitration—Consent of parties—Zanzibar Civil Procedure Decree, sec. 66 and Sch. II-Zanzibar Civil Procedure Rules, O. XXIII r. 60.

Respondents obtained judgment against M. and seized in execution the alleged share of the judgment debtor in the estate of F. deceased by attaching a two-third share in certain immovable property.

The appellant, executor of F., applied for an order raising the attachment on the ground that the judgment-debtor had already received his full share in the estate. Thereupon all parties applied to the Court to have this matter referred to arbitration and an order of reference was made by consent. An award was duly made as a result of which the appellant's application was rejected. Appellant then filed objections to the award and they were dismissed with costs. Appellant then brought action asking for a declaration that the property attached and ordered to be sold was not the property of M. and asking further that the attachment and order for sale be set aside. This action was dismissed. Appellant appealed.

Held (21-11-38).-(1) That apart from its statutory jurisdiction in certain cases the High Court of Zanzibar has the same inherent jurisdiction as the High Court of Justice in England to refer to arbitration with the consent of the parties not only all questions arising in any action pending before the Court but also any other question or dispute which the parties may agree should be decided by an arbitration.

(Appeal dismissed. T. Wang v. Sonawangdi (52 Calcutta 559) considered and Darlington Wagon Company v. Harding & Trouville Pier and Steamboat Company, Ltd. (1891, 1 Q. B. D. 245) approved.)

(Editorial Note.-It would appear that the provisions for arbitration in suits under the second schedule of the Zanzibar Civil Procedure Decree do not apply to execution proceedings. It is held in this case that the High Court was entitled under its inherent jurisdiction to act on the consent of the parties and to make the order of reference irrespective of its statutory jurisdiction.)

*Grimble* for the appellant.

Vellani for the respondents.

The JUDGMENT of the Court was delivered by Sir Llewelyn Dalton, C. J.—The facts arising in this appeal are as follows:—

In Case No. 44 of 1935, in the High Court, Zanzibar, Hajibhai Thaver and Co., as plaintiffs obtained judgment in their claim to recover a sum of money against Mohammedali Fazal Mohammed The judgment creditors thereupon seized in execution the Sheriff. alleged share of the judgment debtor in the estate of the late Fazal Mohammed Sheriff, attaching a two-third share in house and property Application was thereafter filed by Nasserali Fazal at Malindi. Mohammed Sheriff, as executor of the estate of Fazal Mohammed Sheriff asking for the raising of the attachment and alleging that the judgment debtor had already been paid his full share in the estate. Thereupon application was made to the Court by all parties interested, namely the judgment creditor, the judgment debtor, and the executor, to have this matter in difference between them submitted to the arbitration of a person named by them, for which purpose they asked the Court to make an order of reference. This was done on March 16th, 1937, and an award was duly made on June 19th, 1937, the result of which was that the application by the executor was rejected. The executor thereupon filed objections to the award alleging misconduct by the arbitrator. The objections were heard by Law, C. J., and on September 7th, 1937, were disallowed with costs.

The next step was taken by the executor who on November 6th, 1937, commenced Civil Case No. 44 of 1937, against (1) Haji Thaver and Co. (the judgment creditors in case 44 of 1935), (2) Mohammed Fazal Mohamed Sheriff (the judgment debtor in Case No. 44 of 1935), and (3) one of his co-executors, asking for a declaration that the property attached and ordered to be sold in case No. 44 of 1935 was not the property of the above mentioned second defendant who had no right, title, or interest of any kind in it but was that of the plaintiff in this action in his capacity as executor and trustee, and asking further that the attachment and order for sale be set aside.

This action was brought under the provisions of Zanzibar Civil Procedure Decree, O. XXIII r. 60 (Civil Procedure Code, O. XXI r. 63) and after hearing argument, the learned trial Judge dismissed the action with costs. His judgment proceeded upon the basis that the claim made in this action had been, after full investigation by an arbitrator, decided in favour of the present first defendant and against the present plaintiff, that the arbitrator's award had been upheld on appeal, and that the existing order of the High Court in that appeal could not be disregarded in this action. The learned trial Judge however called attention to the fact that, as he said, it would seem that arbitration in suits under the provisions of the Civil Procedure Decree, Second Schedule; do not apply to execution proceedings and if so, the order of reference was made without jurisdiction. In support of this he referred to T. Wang v. Sonawangdi (52 Cal. 559). He nevertheless held that until the order of the High Court affirming the award was got rid of, it was a bar to this further action by the executor. It is from this decision that the plaintiff (executor) now appeals to this Court.

We have had the benefit of very helpful arguments from counsel on both sides, and Mr. Vellani has agreed with Mr. Grimble's argument for the appellant based upon the provisions of the Second Schedule of

the Zanzibar Civil Procedure Decree, and of Order XXIII, r. 60. He agrees that the executor would have been entitled, under r. 60, to launch his suit to establish his right to the property he claims without raising objections to the arbitrator's award at all, but he argues that here there has in fact been no order made within the meaning of rule 60 and so the rule has no application here, with the result that the action must fail. He agrees further that the provisions of the Second Schedule, being in respect of arbitration suits, do not apply to execution proceedings. He concedes that if a reference was made in execution proceedings under the provisions of that Schedule, it would be made without jurisdiction. This reference however he argues was not made under the provisions of the Code at all, but under the inherent powers of the Court, from the general authority of the Judge to act as he did in appointing an arbitrator on the consent of all the parties.

As this question of jurisdiction is the main question arising on the appeal we proceed to deal with it at once. In support of his argument Mr. Vellani referred to Halsbury's Laws of England (2nd Ed., Vol. 1, at p. 630). Dealing with the different kinds of reference it is there pointed out, in respect of references under order of Court, the authority of the referee or arbitrator is derived from the order of the Court. It continued "The High Court of Justice has inherent jurisdiction with the consent of the parties to refer to arbitration not only all questions arising in an action pending before the Court, but also any other question or dispute which the parties may agree should be decided by an arbitrator." This is apart from statutory jurisdiction in certain cases, to which reference is also made.

Reference in support of this argument was made to the decision in Darlington Wagon Company v. Harding and Trouville Pier and Steamboat Company, Limited (1891, 1. Q. B. D. 245). There, in a question arising as to the provisions of the Arbitration Act, 1889, the Court of Appeal held that the order of reference of all matters of difference between the parties, made by consent was not made under the authority of any statute referred to in course of the argument, but under the general authority of a Judge to act upon the consent of the parties and appoint an arbitrator. Lord Esher states that the whole validity and force of the order of reference arose from the consent of the parties. In this respect (see Halsbury, 2nd Ed. Vol. 1 at p. 683), the inherent jurisdiction of the Court is wider than its statutory jurisdiction.

In the case of $T$ . Wang $v$ . Sonawangdi (supra) both sides appear to have taken up the position that the order of reference was made under the provisions of the Second Schedule of the Civil Procedure Code. The judgment states that the question raised was not governed by authority, and no mention was made of the English decision now relied upon by Mr. Vellani. There is reference towards the end of the judgment in the Indian case to a submission that the Court, having jurisdiction over the subject of the litigation, parties can by consent invest the Court with power to do something not strictly within its jurisdiction, but this argument was of course rejected, it being held that the Court was not competent to refer the matter to arbitration under the Second Schedule of the Code and that the award made was invalid and unenforceable.

As to whether or not the High Court of Zanzibar has inherent jurisdiction as in England to deal with this matter, one may refer to<br>section 66 of the Zanzibar Civil Procedure Decree. That section provides that all references to arbitration whether by an order in a suit or otherwise shall be governed by the provisions contained in the Second Schedule of the Rules, "save in so far as is otherwise provided by any law for the time being in force". A similar provision is to be found in section 89 of the Indian Civil Procedure Code. It is in our opinion impossible to read into the sections any intention to alter or limit in any way what would appear to be an inherent power in any High Court of Justice within the bounds set out above, and we can find nothing in either section which is in any way inconsistent with the existence and exercise in Zanzibar of the general authority of a Judge in the circumstances set out by Lord Esher.

In the result therefore after the inherent powers of the Court had been invoked by them to make an order of reference the present plaintiff (appellant) and first defendant (respondent) were parties to a valid reference to arbitration of the question in dispute between them in action No. 44 of 1935, in which an award was made, the correctness of which award was questioned by the present plaintiff on appeal, his appeal being dismissed. He now raises the same question in this action against the same party. In our opinion in the circumstances he is debarred from bringing this action by the order already made and if so his action was properly dismissed. Where parties, as here, have consented to submit their differences to arbitration, and those differences are dealt with in due course by the arbitrator and an award duly made, the appellant has failed to satisfy us that, by reason of such proceedings, there has been any investigation on his claim or objection by the Court, or any order by the Court thereon, within the meaning of $r$ , 60 and the attendant rules, upon which he relies for the right to launch his subsequent suit.

It is not in these circumstances necessary to deal with other questions raised in the argument on the appeal.

The appeal is therefore dismissed with costs.